Fighting New Jersey’s Rule of Three

One of the prime methods of hiring, firing, promotion and discipline of public employees is New Jersey’s civil service. Attorneys from our firm represent employees in appeals from actions by their civil service employers. One of the most significant issues in the civil service hiring process our employment attorneys have encountered is when government employers exercise the “Rule of Three.”

New Jersey’s Constitution requires that hiring in the civil service system must be based on merit and fitness, and that a candidate’s merit and fitness be determined by a competitive examination. The system put in place by New Jersey’s Civil Service Act and the regulations drafted by New Jersey’s Civil Service Commission provide that impartial tests which examine a candidate’s competency are announced, qualified candidates take the test, and then the Civil Service Commission creates a list of “eligibles” from which the candidates must be hired. The highest scorers will receive the top spot on the list. Candidates are to be hired in accordance with their place on the list.

However, an exception applies to this process. Public employers may use the “Rule of Three” to pass over the highest scorer. In the recent case of In re Foglio, New Jersey’s Supreme Court had the chance to examine the Rule of Three. The first thing the Supreme Court did was to explain what the Rule of Three was all about. The Supreme Court explained: “Under the Rule of Three, after a list of at least three candidates is certified, the appointing authority has the discretion to select from among the top three candidates in filling a vacancy. The Rule of Three recognizes employment discretion and seeks to ensure that such discretion is not exercised in a way inconsistent with `merit’ considerations. While ensuring that competitive examinations winnow the field of candidates, the Rule of Three does not stand as ‘an immutable or total bar to the application of other important criteria” by a government employer’.”

However, the employer’s discretion is not unlimited. The primary constitutional goal is merit-based employment without favoritism, nepotism, corruption, political consideratoins or cronyism. Therefore, if the “appointing authority” [ie., the employer] decides to use the Rule of Three to bypass the highest ranked candidate, it must notify the Civil Service Commission of the reasons it exercised the bypass. It may be “for any legitimate reason based upon the candidate’s merit.”

A candidate who has been bypassed may challenge the decision by appealing to the New Jersey Civil Service Commission. The employee must then prove that the employer acted in an unlawful, discriminatory, arbitrary, retaliatory or capricious manner.

The appellant in the case, Nicholas Foglio, was a volunteer firefighter who was passed over for two lower ranked candidates through the Rule of Three for a position as a paid firefighter with the Ocean City, New Jersey Fire Department. Foglio did not argue that the decision was illegal, discriminatory or was for any other impermissible motive. Rather, Foglio admitted that he didn’t know why he was passed over because the explanation given were so vague that they would not enlighten anyone as to the reasons behind skipping over Foglio.

The Supreme Court agreed with Foglio. It explained that the reasons given were “boilerplate” which could have applied to any of the candidates. The employer simply said that it exercised the Rule of Three to pass over Foglio because that decision “best meets needs of the Department.” The Supreme Court basically said this was so vague as to be devoid of any meaning, and did not leave anyone in a position to determine whether the reason was proper or improper. The Supreme Court explained that the “The possibilities are endless” for reasons a candidate be properly passed over, such as experience, training, etc. However there has to be some written statement sufficiently identifying actual, concrete reasons for the exercise of the Rule of Three.

While the Civil Service Commission has the power to order reinstatement with back pay when a candidate has been passed over under the Rule of Three for an illegal reason, such as for example racial or gender discrimination, in this case it remanded the case to have the town give a detailed statement of why it passed Foglio over.

Our New Jersey civil service lawyers have significant experience representing employees in appeals of employers’ decisions. E-mail us, or call (973) 890-0004 to schedule a consultation. We can help.